Supreme Court New South Wales Medium Neutral Citation: R v Martin (No 6) [2017] NSWSC 1344 Hearing dates: 25 September 2017 Date of orders: 29 September 2017 Decision date: 29 September 2017 Jurisdiction: Common Law Before: Hamill J Decision: (1) Evidence of the simulation, experiment or demonstration carried out and recorded by investigating police on 10 December 2014 (and the opinions proffered as result) is not admissible. (2) The proposed demonstration whereby Detective Edmonds would be bound with tape in the witness box and asked to attempt to extricate himself is not allowed. (3) The proposed invitation to the jury to handle the tape and to tear it is not permitted. Catchwords: CRIMINAL LAW – evidence – Crown application to tender evidence of experiment or demonstration concerning strength of tape – evidence relevant to accused's account of circumstances of father's murder – where demonstration does not replicate circumstances of event – application for jury to be invited to conduct tests of tape in jury box – undesirability of jury becoming investigators – desirability of jury remaining impartial observers until all evidence tendered – various demonstrations inadmissible Legislation Cited: Evidence Act 1995 (NSW), ss 53, 135 Cases Cited: Evans v the Queen (2007) 235 CLR 521; [2007] HCA 59 Kozul v The Queen (1981) 147 CLR 221; [1981] HCA 19 State of Minnesota v Gerard J Costello 646 North Western Reporter, 2d Series 204 (Minn 2002) Tootle v R [2017] NSWCCA 103 Category: Procedural and other rulings Parties: Regina (Crown) Micheal Phillip Martin Representation: Counsel: Mr B Campbell (Crown) Mr G D Wendler (M P Martin) Solicitors: Director of Public Prosecutions (Crown) Stuart Percy & Associates (M P Martin) File Number(s): 2015/78236; 2015/120687 Publication restriction: No publication until conclusion of trial Judgment 1. The Crown sought to elicit certain evidence, and to invite the jury to do certain things, that are said to be relevant to the question of the credibility of the accused's version of the events surrounding his father's murder. Mr Wendler, who appears for the accused, raised objection to each aspect of the Crown's proposed presentation. The argument took place on 25 September 2017 and, to enable the parties to prepare for the final week of the prosecution case, I announced my orders and rulings on 29 September 2017. I upheld the objection in respect of each piece of evidence and each part of the prosecution's proposed presentation and indicated that I would provide reasons later. These are my reasons. 2. The Crown case is that the accused attempted to murder his father in April 2014 in the father's flat in Murwillumbah. His father was left with serious injuries but survived. The accused has, or asserts, an alibi for the date and time of that offence. 3. After the April incident, the deceased was in a hospital for a period and was then cared for by a former girlfriend in the area of the Glasshouse Mountains. Once that situation became untenable the accused undertook to look after his father. A couple of days later, on 12 June 2014, the pair travelled together from the accused's home in Esk to the flat in Murwillumbah where the offence occurred in April. The Crown case is that the accused murdered his father in the early hours of the following morning. The Crown relies on a number of pieces of circumstantial evidence including (but not limited to) the accused taking out insurance policies on his father's life in February 2014, the accused's expressing hatred of his father, the accused's geographical proximity to the events, a letter containing what the Crown asserts is an admission, the accused's training in martial arts and ownership of a sword capable of inflicting the types of injuries that killed the deceased. 4. The accused's case is that he was the victim of the same crime that resulted in his father's death. He says that unknown criminals, perhaps the same people who committed the April offence, invaded his father's home while he was sleeping. The intruders hit him in the head, threatened to kill him, bound him with tape and left him in the bathroom of the premises. They then murdered his father. There is evidence in the trial that the deceased was involved in some way with outlaw motorcycle gangs and drug dealing and evidence from which an inference might be drawn that certain unsavoury characters may have had a motive to do him harm. 5. A local resident (Mr Collingwood) found the accused, making muffled cries for help, at about 5am on Friday 13 June 2014. He was at the foot of the stairs that lead up to the flat where the crimes were committed. He was bound with black tape. Mr Collingwood unbound him. After discovering the dead body of the accused's father, emergency services were called. An ambulance arrived first and police arrived a short time later. A crime scene was established and police collected the lengths of black tape with which the accused was bound. 6. The current evidentiary and forensic controversy concerns the nature and properties of that black tape. The Crown case is that the accused staged his own assault. It seeks to establish that the accused's account lacks credibility. One aspect of that concerns the nature of the black tape. The Crown will attempt to prove that the kind of tape in which the accused was discovered bound up was easy to tear and that the accused could easily have broken free of his bindings soon after the intruders left the premises. 7. The Crown seeks to do three things, identified in argument as follows: [1] "Your Honour I am happy to indicate that what I'm proposing to do in relation to that evidence is in essence threefold. There are three things that I would be asking the Court to do in relation to the gaffer tape, your Honour understanding that a roll of the tape has been tendered to the court. Your Honour firstly is to admit into evidence oral evidence of Detective Edmonds being bound with the tape, and his description of that experience, and the ease with which he was able to burst free of the tape. As a part of that I would ask the Court to accept into evidence a video of that process. The second thing I would be asking to do is that during the evidence of Detective Edmonds I would ask that tape be applied to his hands and wrists and ask him to demonstrate if it can be torn. The third is to invite the jury to examine lengths of tape in court, so that would involve peeling off a length of tape for each member of the jury if they wished, so that they can examine the tape in terms of its, if there's a more technical term, stickiness, adhesive ability I suppose, and invite them to see how easily it tears." 1. Counsel for the accused submits that the proposed evidence and presentation has the capacity to be misleading and unfairly prejudicial. In particular, the video demonstration of Detective Edmonds escaping from his binds is artificial and fails to replicate the circumstances in which the accused found himself on the morning of his father's murder. Based on the evidence available to the Court, it cannot be determined how closely the accused was bound or the number of times the tape was wrapped around itself. Further, the demonstration fails to take account of the particular circumstances in which the accused found himself and, specifically, the fact that he had been struck in the head and was in a state of distress and panic after hearing his father assaulted (possibly murdered) by the intruders. At its high point, counsel submitted that the demonstration was so far removed from the true circumstances as described by the accused (and Mr Collingwood) that the evidence was not relevant. That is, it had no capacity rationally to affect an assessment of a fact in issue. As to the proposed invitation to the jury to conduct experiments with the tape in the jury box, Mr Wendler submitted that there was a risk that there would be a tacit invitation for the jury to take on the role of investigators or detectives rather than fact finders. An initial submission that the failure to obtain an order under s 53 of the Evidence Act 1995 (NSW) rendered the recording of Detective Edmonds "bursting free from the tape" was not pressed. 2. The Crown submits the evidence is relevant. A critical fact in issue is the credibility of the accused's account to police, an account upon which he continues to rely on in his defence to the charge of murder. If the tape was of such a nature that the accused could easily have broken free, the suggestion that he staged his own assault gains force. Accordingly, evidence going to the ease with which the tape might be torn or broken has a capacity rationally to affect a fact in issue. I accepted this submission. 3. The Crown went on to submit that the evidence and demonstrations are not misleading and the jury can be directed as to any deficiencies in the evidence. 4. A deal of evidence adduced in the trial prior to the voir dire on this issue is relevant to the question currently under consideration. Without attempting to be exhaustive, this includes: * Documents showing a transaction on 12 June 2014 at Bunnings Booval by which one of the accused's credit cards was used to purchase of a number of items, including a role of tape described as "CLOTH TAPE NORTON, 50MM 25M BLACK 6613". [2] * Evidence that investigating police purchased two rolls of the same (or similar) tape from "the exact same Bunnings store". [3] * A roll of the tape purchased by police. [4] It is described on the label as "General purpose" "Bear" tape and it boasts a "Specialty" as "Strong and versatile yet easy to tear by hand". * A recorded interview with the accused immediately after the incident in which he provided a version of events. [5] * A statement to police made by the accused on 13 June 2014. [6] * The evidence of Mr Collingwood in which he described the way in which the accused was bound when he found him. [7] Mr Collingwood agreed that he told the police that he tried to break the tape that bound the accused wrists but was unable to do so. [8] * Photographs of the tape located at the scene and later when it was analysed by police. [9] 1. The evidence tendered on the voir dire included the statement of Detective Edmonds in which he set out the steps he took before conducting the experiment. [10] This included the purchase of tape that the investigation suggested was of the same or similar type to that with which the accused was found as well as a summary of things the accused and Mr Collingwood told police as to the manner in which the accused was bound. The statement included production of the DVD showing the demonstration and this was also tendered on the voir dire. [11] 2. Extracts of the accused's interviews with police were tendered on the voir dire, [12] as was an expert report of Dr Joanna Bunford, an expert in forensic chemistry who carried out tests on the tape purchased by police. [13] Since reserving my decision on the present issue, Dr Bunford gave evidence in the trial. [14] Dr Bunford found the tape purchased by the police to be essentially of the same kind that was found at the scene of the murder. The only difference between the two items (higher levels of zinc in the tape found at the crime scene) was explicable on three bases and, in any event, did not appear to impact the relevant properties of the tape. In the course of her evidence, the jury was shown pieces of the tape and Dr Bunford demonstrated the ease with which a piece of tape could be torn. Dr Bunford also demonstrated the tape being torn after it had been folded over on itself. Her evidence included the opinion provided in her report that "the tape could be torn easily between the scrim threads that ran perpendicular to the long edges". The "scrim" is a kind of hatched cloth binding that provides the tape with its strength. She also gave evidence of the details of her examination and experiments relating to the qualities, including the strength and "tearability", of the tape. [15] 3. The parties agreed that the decision of the High Court in Evans v the Queen is binding authority for the proposition that s 53 Evidence Act "does not apply to what happens in the courtroom at the trial". [16] However, it appeared to be common ground that some of the matters referred to in s 53 are relevant to the resolution of the current controversy. The section provides: 53 Views (1) A judge may, on application, order that a demonstration, experiment or inspection be held. (2) A judge is not to make an order unless he or she is satisfied that: (a) the parties will be given a reasonable opportunity to be present, and (b) the judge and, if there is a jury, the jury will be present. (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following: (a) whether the parties will be present, (b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence, (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time, (d) in the case of a demonstration--the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated, (e) in the case of an inspection--the extent to which the place or thing to be inspected has materially altered. (4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations. (5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury. 1. The parties agreed that sub-s (4) prohibited the jury from undertaking its own tests or experiments on the tape in the course of its deliberations. 2. The Crown submitted that, in the light of the decision in Evans v The Queen, the position is governed by the common law. The Crown placed some reliance on the decision in Kozul v The Queen [17] where the High Court approved of a procedure where a jury was directed "to examine and handle" a revolver "so as to better understand the oral evidence". [18] There was an issue in that case as to whether the gun in question had been accidentally discharged. On the other hand, Gibbs CJ held: "When the experiments conducted by the jury go beyond a mere examination and testing of the evidence, and become a means of supplying new evidence, they become impermissible". [19] 1. As can be seen there is already evidence in the trial that will assist the jury in determining the issue concerning the credibility of the accused's account in relation to the tape. The evidence goes both ways. For example, Mr Collingwood's evidence suggests that the tape was difficult to tear or, at least, that he was unable to tear it in the circumstances in which he found himself. Against that, Dr Bunford's analysis and opinion, along with her demonstration, suggest that the tape was easy enough to tear and this accorded with the labelling of the tape itself. There is a good deal of other evidence going to the credibility of his account more generally. That does not render irrelevant the evidence the Crown seeks to lead, and the demonstration or experiment it seeks to carry out, but it does reduce the importance of the evidence and demonstration. 2. I have considered the recording of the demonstration undertaken by police. I have concluded that it lacks scientific rigour. I am not convinced that it replicates to a satisfactory degree any of the versions of the taping up of the accused provided by Mr Collingwood or by the accused. I am conscious of the difficulties confronting the investigating police that arose as a result of the different accounts given by the two witnesses and I proceed (in the absence of cross-examination) on the basis that the attempt to replicate events was a genuine one. 3. Nevertheless, the demonstration may be misleading if the binding is different to that which actually prevailed prior to Mr Collingwood removing the tape on the morning of the murder. There are at least three aspects to this. The first relates to the precise areas on the body where the accused was bound. The difficulty (or ease) in breaking the binds may vary considerably if the tape were over the hands or closer to the hands that is portrayed in the demonstration. The same applies to the binds on the legs. A more scientific approach to the experiment (which is, I suspect, more of a demonstration of what the detectives believed) would have involved applying the binding in varying positions to reflect the variations in the versions provided by the witnesses. The second aspect is the number of areas of binding. On Mr Collingwood's version in evidence, there may have been four areas of binding (the knees, the ankles and/or feet, the wrists and/or hands and the face). [20] Most versions (of both Mr Collingwood and the accused) suggest only three areas of binding and it was on this basis that the police demonstration or experiment proceeded. A third area of possible variation between the reality of events on 13 June 2014 and the simulation undertaken by police concerns the tightness of the binding, both in terms of the number of times the tape was wrapped around and also the closeness of those binds. Detective West, who wrapped the tape around Detective Edmonds, did so hurriedly and there appeared to be no real attempt to make the bindings as tight and disabling as possible. The real perpetrators, if they existed, are likely to have done their best to make the binding as tight as possible. 4. Apart from the nature of the binding, the simulation, experiment or demonstration could not replicate two essential features of the incident asserted by the accused. First, the fact that he was hit in the head. Second, the stress and panic resulting from the killing of his father. 5. The evidence is also of a graphic nature and the jury, in spite of directions to treat it cautiously, may afford more weight to the evidence than it is entitled to. 6. For those reasons, the probative value of the evidence is substantially outweighed by the danger that the evidence may mislead the jury or cause unfair prejudice to the accused. Accordingly, I propose to exercise the discretion in s 135 Evidence Act and refuse to admit the evidence. Similarly, unless the accused wishes it to be adduced, I would rule to be inadmissible the questions asked of the accused in his recorded interview and the description and opinions concerning the simulation provided by Detective Edmonds in his statement. 7. I turn to the second aspect of the evidence or demonstration referred to by the Crown Prosecutor. This concerns an application to have Detective Edmonds bound with the tape in the witness box and then demonstrate whether (or how) he would tear it off. This suffers potentially from the same flaws as the recorded simulation. That is, it is not possible to recreate the circumstances confronting the accused at the relevant time. It would be naïve to think that Detective Edmonds had not previously undertaken this exercise. The accused, if his story is to be believed, was a novice. 8. Further, at the first adjournment after the evidence in chief of Dr Bunford, I raised with the Crown Prosecutor the possibility that any demonstration could be undertaken in the course of her evidence. [21] As it turned out, Mr Wendler invited her to tear some of the tape in two different forms. In re-examination, it was open to the Crown to follow this up with further demonstrations and, to a degree, the matter was further explored and the nature of the tape and its properties communicated to the jury. As I said at the time, an independent expert such as Dr Bunford seemed to be a more appropriate person through whom to conduct such experiments. 9. One way or another, I am not satisfied that the proposed demonstration by Detective Edmonds would advance the jury's understanding of the issues to any significant degree. I ruled that the Crown would not be permitted to undertake a demonstration wherein Detective Edmonds would be bound by the tape in the witness box and invited to try to remove the tape. 10. The final aspects of the Crown's application is to have the jury handle the tape in various ways and be invited to try to tear it. It was submitted that this was analogous to the jury handling the gun in the case of Kozul v The Queen. I accept there are some similarities but the cases are far from being truly analogous. The ease with which a particular revolver might accidentally discharge is a relatively straightforward and direct issue that might readily be illuminated by inspection of the weapon in question. It is quite another thing to ask a jury to make an assessment of the ease with which a piece of tape might be torn and then to extrapolate from that the ease with which the accused could have escaped in the circumstance he claims prevailed shortly after his father's murder. Those circumstances include – on his account – his being struck in the head and his exposure (audibly) to the extreme violence visited upon his father. Again, the problem exists as to the number of times the tape was wrapped around itself and the tightness of those binds. 11. In Tootle v R [22] the NSW Court of Criminal Appeal emphasised the dangers of inviting a jury in a criminal trial to become investigators. The jury's role is to "maintain a position of impartial arbiter" and the "structure of the trial is undermined if the jury is permitted to take on an inquisitorial role". [23] The Court referred approvingly to the decision of the Minnesota Supreme Court in State of Minnesota v Gerard J Costello [24] where it was said that "passive detachment" increases the probability that jurors will "remain open minded until the presentation of all of the evidence". These cases concerned the jury being permitted (or encouraged) to ask questions of witnesses and, again, are not truly analogous. Even so, I have real concerns that undertaking the demonstration or experiment contemplated by the prosecution is apt to place the jury in the role of inquisitor or investigator and to do violence to their function of remaining impartial and passive observers and arbiters of the whole of the evidence. 12. For those reason, I refused to permit the prosecution to undertake this third form of demonstration or experiment. 13. Accordingly and in summary, I made the following rulings: 1. Evidence of the simulation, experiment or demonstration carried out and recorded by investigating police on 10 December 2014 (and the opinions proffered as result) is not admissible. 2. The proposed demonstration whereby Detective Edmonds would be bound with tape in the witness box and asked to attempt to extricate himself is not allowed. 3. The proposed invitation to the jury to handle the tape and to tear it is not permitted. ********** Endnotes 1. Transcript (T) 755. 2. Ex UU and VV. 3. T 602-603. 4. Ex WW. 5. Ex HHH. 6. Ex FFF. 7. T 647-669 especially at 650-651. 8. T 666. 9. Ex LLL, photographs 6-11, Ex NNN photographs 243, 244, 247, 248, 241, 240, 242, 223, 221 (that is, in the order that they appear in the exhibit). 10. Ex VD-H. 11. Ex VD-J. 12. Ex VD-K 13. Ex VD-L. 14. T 919-939. 15. See, for example, T 932. 16. (2007) 235 CLR 521; [2007] HCA 59 at 530 (Gummow & Hayne JJ) and Heydon J (dissenting in the outcome but carrying the day on this issue) at 575-578. 17. (1980) 147 CLR 221 18. Ibid, at 234 (Stephen J). 19. Ibid, at 227. 20. T 650–651. 21. T 929. 22. [2017] NSWCCA 103. 23. Simpson JA at [42]-[43]. 24. 646 North Western Reporter, 2d Series 204 (Minn 2002). Amendments 01 December 2017 - Typographical error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2017